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EXHIBIT 10.41
INFOSEEK CORPORATION ADVERTISING AGREEMENT
AGREEMENT made as of January 1, 1996 by and between MARGEOTES|FERTITTA +
PARTNERS INC, (hereinafter called the "Agency") whose address is 411 LAFAYETTE
STREET, NEW YORK, NY 10003 and Infoseek Corporation (hereinafter called
"Infoseek") whose address is 2620 Augustine Drive, Suite 250, Santa Clara, CA
95054.
WITNESSETH:
In consideration of the mutual promises, covenants, and agreements contained,
and other good and valuable considerations, receipt of which is hereby
acknowledged by each party, the parties agree as follows:
1. APPOINTMENT
1.1 Agency Services. Infoseek hereby retains the Agency on a
non-exclusive basis in the United States, and the Agency
hereby agrees to serve Infoseek, in connection with the
preparation of advertisements for such of Infoseek's products
and services as it may from time to time designate and for
placement in such advertising media as it may from time to
time designate including newspapers, magazines, radio and
television broadcasting, outdoor advertising, and other
legitimate advertising media.
1.2 Agency Status. Agency is hereby authorized to act in a legal
capacity of agent for Infoseek in the procurement of tangible
personal property on behalf of Infoseek from outside sources
in furtherance of a program of advertising. Concerning such
purposes, the price billed to Infoseek, exclusive of any
agency compensation or prompt payment discount separately
stated, shall be the same as the amount paid by Agency and
shall be shown separately on an invoice or shall be separately
invoiced. It is the intent of this paragraph to comply with
the prerequisites for establishing Agency's "agent" status as
set forth in Regulation 1540 of the Board of Equalization,
Department of Business Taxes, State of California, if
applicable. If and when any governmental agency at any time
assesses any taxes whatsoever (whether during or after the
term of this Agreement) regarding the sale or transfer of
personal property by Agency to Infoseek (or any additional or
substituted real or personal property tax) Infoseek agrees to
pay such additional tax upon demand.
2. DUTIES OF AGENCY
In execution of Infoseek's advertising the Agency shall perform
the following duties and Infoseek will cooperate to its best ability:
2.1 Study the products/services of Infoseek covered by this
Agreement, the market for its products/services, and
Infoseek's competition and formulate an advertising strategy
for Infoseek.
2.2 When requested by Infoseek, prepare preliminary plans for the
proper advertising of the products/services which will be
designed to make the best possible use of the appropriation
deemed necessary or the appropriation made available by
Infoseek.
2.3 Prepare cost schedules for advertising expenditures and other
related costs.
2.4 Prepare layouts and, when requested, finished comprehensive
layouts; and prepare all actual copy to be used in
advertisements of all types.
2.5 Exercise its best efforts to purchase at the most favorable
rates artwork of the quality required by Infoseek, engravings,
printed matter, and other collateral materials, from artists,
designers, photographers, engravers, printers and others.
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2.6 Contract on behalf of and as directed by Infoseek with
advertising media and others for and in connection with the
advertising of Infoseek and exercise its best effort to do so
at the most advantageous rates obtainable.
2.7 Check the insertion of advertisements in publications for
appearance, date, positions, size, and mechanical reproduction.
2.8 Check by the examination of affidavits furnished by stations
the broadcast of radio and television advertising for time,
accuracy, extent, and other related factors.
2.9 Check the display of outdoor advertising for date of
appearance, positions, site, workmanship, and mechanical
reproduction.
2.10 Retain custody of Infoseek's property and exercise its best
efforts when deemed necessary by Infoseek or Agency to obtain
its return from third parties.
2.11 Undertake any other activities as may be mutually agreed upon.
3. APPROVAL BEFORE COMMITMENTS BY AGENCY
3.1 The Agency shall in no event place any advertisement of
Infoseek in any advertising medium without first submitting
the text and designs therefor to Infoseek and obtaining
Infoseek's approval thereof. Such approval may be granted only
by Infoseek's Director of Marketing or a designee specified in
writing by the director and may be made in writing or orally.
3.2 Before incurring liability for artwork, mechanical layouts,
and/or printed matter, the Agency shall first secure approval
of text and designs in accordance with Paragraph 3.1 above,
which approval shall constitute approval for the Agency to
purchase such artwork, mechanical layouts and/or printed
matter necessary for the advertisement in which the approved
text and designs are to be used.
3.3 Agency will make all reasonable efforts to guard against any
loss to Infoseek through failure of any supplier or agent to
properly execute their commitments, but Agency shall not be
held responsible for any such failures. Agency agrees that in
purchasing materials of services for Infoseek's account,
Agency shall exercise due care in selecting suppliers and make
every effort to obtain the lowest price for the desired
quality of materials or services. Wherever possible, Agency
shall obtain competitive bids. In no event shall Agency
purchase any materials or services from any supplier which is
a subsidiary or affiliated company of Infoseek or which is
known to Agency to be owned or controlled by any of the
directors or officers of Agency without making full disclosure
to Infoseek of any such relationship.
4. CHARGES TO INFOSEEK; SPACE AND TIME
4.1 Where an agency commission of [ ]* is
allowed by the medium, Infoseek agrees to pay the Agency at
rates contracted with medium based on published rate cards, or
as negotiated, whichever rate is more advantageous to
Infoseek, where less than [ ]* commission
is allowed, Infoseek agrees to pay the Agency at contracted
rates plus an amount which will yield the Agency [ ]*
of its total charge to Infoseek, inclusive of commission, i.e.
[ ]* of the gross billing for medium.
__________________________________
*Confidential Treatment Requested for Redacted Portion.
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Agency shall be paid for its commissions, overrides and fees
as follows:
The first [ ]*
(to the extent Infoseek shall have received invoices
therefor on or before [ ]* will be paid
in stock, as defined below.
All subsequent payments will be made in cash, unless
otherwise agreed to by Agency and Infoseek in writing
in advance of the rendering of Agency's services.
All stock payments will be made in the same class and series
of stock at the purchase price paid by NYNEX Information
Technologies Company ("NYNEX") on March 29, 1996. Infoseek
represents that the Agency will have identical rights on a per
share basis as NYNEX-piggybacked and other rights, including,
but not limited to, registration rights, liquidity, dividends,
and anti-dilution protection. In this regard Agency will
become a signatory to the following:
o Second Amended and Restated Co-Sale Agreement,
as amended
o Second Amended and Restated Investor Rights Agreement,
as amended
o Infoseek Corporation Series E Stock Purchase Agreement.
All shares earned by Agency will be immediately vested and
issued to Agency on or before the due date of invoices
rendered to Infoseek by Agency.
Agency shall be free to sell, pledge, hypothecate or otherwise
dispose of the stock pursuant to the aforementioned agreements.
4.2 If, in an advertising medium having a schedule of graduated
rates, less space or time than contracted for is used,
Infoseek is to pay the Agency the difference, if any, between
the amount due at the rate named in the contract between the
Agency and the medium, and the amount due at the rate
applicable to the quantity of space or time used in connection
with Infoseek's advertising or a negotiated amount, whichever
is more advantageous to Infoseek.
4.3 If, in a medium having a schedule of graduated rates, more
space and time than contracted for is used, the Agency shall
refund to Infoseek any excess Infoseek may have paid the
Agency over the amount due at the rate earned.
4.4 The Agency shall refund or credit to Infoseek any other
refunds or commission in excess of those stated in this
Paragraph 4 received by the Agency in connection with
advertising space, radio or television time, or materials for
which Infoseek had paid the Agency.
___________________________________
*Confidential Treatment Requested for Redacted Portion.
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5. CHARGES TO INFOSEEK, OTHER THAN FOR SPACE AND TIME
5.1 Outside Supplier Cost. For all services and materials listed
below (other than for space, or radio and television time)
purchased by the Agency upon the authorization of Infoseek,
Infoseek shall pay to the Agency an amount equal to the charge
to the Agency before deduction of cash discount [ ]*
commission, no commission is to be paid on sales or use taxes.
The following items are to be billed on this basis:
a. Illustration, design, artwork, comprehensive layouts,
and mechanical.
b. Engraving, typography, photography,
and other materials.
c. Printed matter.
d. Special writers.
e. Radio and television talent and programs or package
shows, radio, television and other script or
treatments, musical arrangements and program and
commercial production.
f. Surveys contracted for with independent research
organizations or individuals.
5.2 Account Management Time. For the services and materials listed
below, furnished by the Agency and which have been authorized
by Infoseek (as distinguished from services and materials
bought outside the rates in effect at the time the work is
performed, including work performed prior to execution of this
Agreement. Agency's hourly rates are published and current
Agency rate card is considered apart of this Agreement by
reference. Infoseek reserves the right to be informed of any
change in rates whenever they occur, and prior to their effect
on services rendered. Services included:
a. Finished artwork, comprehensive layouts, and
mechanicals.
b. Publicity and public relations work.
c. Special research authorized by Infoseek.
d. Sales and service materials.
e. Preparation of cooperative advertising.
f. Special sales promotion and merchandising work.
g. Other services as may be approved by Infoseek in
writing in advance.
h. Supervisory and administrative services rendered by
the Agency in connection with advertising, printed
matter, counter displays, collateral materials, and
the like, and for services rendered by the Agency in
the preparation of copy and layout for such items
Infoseek shall pay to the Agency such amount as is
agreed upon by the Agency and Infoseek.
5.3 Reimbursed Expenditures. Upon the Agency performing the
services listed below, Infoseek agrees to reimburse the Agency
for such cash disbursements as the Agency may make in
connection with them and such additional expenditures as may
be approved by Infoseek in advance in writing:
___________________________________
*Confidential Treatment Requested for Redacted Portion.
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a. Forwarding and mailing to persons other than Infoseek
(including packing, postage, express, taxes, import
duties).
b. Long distance telephone and facsimile expenses on
Infoseek's behalf beyond normal Agency-Infoseek
communications.
c. Taxes incurred on Infoseek's behalf.
d. Upon prior approval from Infoseek, traveling expenses
incurred on Infoseek's behalf beyond normal
Agency-Infoseek requirements.
e. Other services as may be approved by Infoseek from
time to time in writing in advance.
6. BILLINGS TO INFOSEEK
6.1 Infoseek agrees to pay the Agency's invoices on or before
payment dates stated thereon. The Agency agrees that such
payment dates will not precede, by more than Five (5) days,
the date on which the Agency must pay media. The Agency will
mail invoices at least Forty-five (45) days before payment
date.
6.2 Invoices submitted by the Agency to Infoseek covering
expenditures or commitments made by the Agency on Infoseek's
behalf shall be accompanied by tear sheets (if such
expenditures or commitments are for printed advertisements) or
by affidavits of performance (if such expenditures or
commitments are for broadcast advertisements) or by copies of
subcontractors' invoices (if such expenditures are for
production services). If tear sheets or affidavits are not
available when the invoices are submitted, the Agency shall
forward the tear sheet as soon thereafter as possible with
reference to the invoice numbers to which they relate. Such
delay in the submission of tear sheets or affidavits shall not
constitute cause for delay of payment. Invoices for expenses
incurred under Paragraphs 5.2 and 5.3 hereof shall itemize
such expenses.
6.3 Invoices submitted by the Agency to Infoseek covering services
rendered by the Agency on a time basis will represent the
precise amount of time spent by the Agency on each job. All
time charges shall be supported by accurate time records
maintained by the Agency on a per job basis and shall be
available for inspection by Infoseek under Paragraph 12
hereof.
7. CASH DISCOUNTS
The exact amount of any cash discount allowed to the Agency by media
for early payment will be allowed to Infoseek provided that payment is
made to the Agency in accordance with the cash discount terms stated
on the Agency's invoices. No other cash discounts shall be allowed to
Infoseek, unless otherwise agreed upon writing.
8. PROOF OF PAYMENT
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The Agency shall have available proof of payment to media and other
third parties in respect to all work and/or services rendered for or
on behalf of Infoseek. Such proof shall be made available to Infoseek
upon request at the Agency's place of business at any reasonable time.
9. RIGHTS RESERVED TO INFOSEEK
Infoseek expressly reserves the right, at its own discretion, and for
any reason deemed by it to be sufficient, to modify or reject any
schedules and plans submitted by the Agency, and to direct the Agency
to cease work in connection therewith; and in such case, the Agency
shall immediately notify all publishers, printers, engravers, artists,
designers, or other third parties engaged in carrying out such
schedules or plans to cease work theron. It is expressly agreed that
Infoseek shall reimburse the Agency for all costs and expenses
incurred by the Agency if incurred according to the terms of this
Agreement up to the time of receipt of notice of cancellation and for
all charges and liabilities incurred by the Agency in carrying out
such cancellation pursuant to Infoseek's instructions.
10. PROPERTY OF INFOSEEK
Ideas, plans, musical themes, slogans and any other creative products
that have been adopted or paid for by Infoseek in campaigns conducted
by or for Infoseek are to be considered the sole property of Infoseek,
the unrestricted use of which Infoseek shall be solely entitled.
Infoseek shall own all right, title and interest, (including
copyright) in and to such items provided, however that for such items
and other creative products which are not created by Agency, Infoseek
shall have all rights thereto as may be granted by supplier. Agency
shall endeavor to get ownership in such items and creative products
and shall clearly indicate on all quotations to Infoseek the
applicable rights granted to Infoseek in connection therein.
11. INDEMNIFICATION BY AGENCY
11.1 Agency will indemnify, hold harmless and at Infoseek's
request, defend Infoseek and its directors, officers,
employees, contractors and agents from and against any claims,
liability, damage, cost and expense (including reasonable
attorney's fees and costs of suit) to the extent they arise
out of (i) a breach of any of the covenants or warranties
made by Agency in this Agreement; (ii) any negligent act or
willful misconduct of Agency (iii) any violation of any
status, ordinance or governmental regulation by Agency, or
(iv) any violation of the copyright, trademark or other
proprietary right of a third party, or the defamation, libel,
disparagement, injury to commercial reputation, invasion of
privacy of a third party arising out of Infoseek's or Agency's
use in accordance with this Agreement of materials created by
or for Agency.
11.2 It will be Infoseek's responsibility to: (1) provide
information and/or data relevant to claims or representations
made with respect to Infoseek's products or service and (2)
review all advertising or other materials prepared under this
Agreement in order to confirm that such claims or
representation, whether direct or implied, are true, accurate
and supportable by objective and reliable data in Infoseek's
possession, and are not deceptive or misleading, and to
confirm the accuracy of the description and depictions of
Infoseek's products and services.
11.3 In the absence of Agency intentional misconduct or negligence,
Infoseek will hold Agency free of liability and expense
occasioned by any claim, suit or proceeding instituted by a
third party to the extent arising from (i) the use by Agency
of material, information or data furnished by Infoseek for the
use in advertising by Infoseek or (ii) product liability,
safety or performance of Infoseek's products. In the event of
any proceeding by a regulatory agency or any court action
challenging any published advertisement prepared by Agency
pursuant to this Agreement and approved by Infoseek, Agency
will assist in the preparation of the defense of such action or
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proceeding in cooperation with Infoseek and Infoseek's
attorneys. Provided that the subject of such proceeding is not
as result of Agency's negligence, intentional misconduct or a
violation of this Agreement, then any out-of-pocket costs
Agency may incur shall be reimbursed by Infoseek, provided
such costs have been authorized in advance in writing by
Infoseek's authorized representative.
11.4 It is understood that Agency reserves the right to refuse to
undertake any campaign, or prepare or cause publication of any
advertising publicity or other material which, in Agency's
judgment, would be misleading, indecent, libelous, unlawful,
or otherwise prejudicial to Infoseek's or Agency's interest.
11.5 Agency agrees to obtain and maintain in force, at Agency's
sole expense, an Advertising Agency Liability Policy with the
Agency as the insured and Infoseek as an additional insured, at
Agency's sole expense, having a minimum limit of liability of
One MIllion Dollars ($1,000,000), with a Ten Thousand Dollar
($10,000) maximum deductible.
12. EXAMINATION OF AGENCY RECORDS
All contracts, paper, correspondence, copy, books, accounts, and other
information relating to Clients business of Infoseek or the expenses
incurred on its behalf shall open to inspection and examination by an
authorized representative of Infoseek at all reasonable times.
13. EXCLUSIVE ARRANGEMENT
Agency for Infoseek's Competitors. For the duration of this Agreement
the Agency shall not act as an advertising agency for a supplier of
products which directly compete or a provider of services which
directly compete with those of Infoseek without first having procured
the written consent of Infoseek.
14. TERM OF AGREEMENT
14.1 This Agreement shall become effective on the date of execution
and shall continue in force and effect until terminated upon
sixty (60) days notice in writing given by either party to the
other and sent by certified or registered mail return receipt
requested to the principal place of business of the party to
whom such notice is addressed.
14.2 The rights, duties, and responsibilities of the Agency and
Infoseek shall continue in full force and effect during the
period of notice, including the carrying to completion of
plans for and the placing of any advertisement which Infoseek
has authorized the Agency to place in named media whose
closing dates fall within the notice period.
14.3 After the expiration of the notice period, no rights or
liabilities shall arise out of this relationship.
14.4 Upon termination of this contract, the Agency shall transfer
and make available to Infoseek or its representative all
property and materials in the Agency's possession belong to
Infoseek, all information regarding Infoseek's advertising,
and if approved by third parties in interest, shall assign all
reservations, contracts, and arrangements with advertising
media or others for advertising space, time, materials, or
services yet to be used, and all rights and claims thereto
and therein, and no extra compensation shall be paid to the
Agency for its services in connection with this transfer.
Upon such transfer, Infoseek shall assume all the obligations
of the Agency which Infoseek authorized it to incur to third
parties and shall release the Agency therefrom. If any third
party in interest fails to approve the transfer to Infoseek
by the Agency of any reservations,
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contract, or arrangement with said third party, then the
Agency shall fulfill its obligation under such
reservation, contract, or arrangement and Infoseek shall
fulfill its obligations to the Agency pertaining to such
reservation, contract, or arrangement, as if this Agreement
had not been canceled.
14.5 Upon termination of this contract, any uncompleted work
previously authorized by Infoseek, either specifically or as
part of a plan, will be paid for to the extent completed, by
Infoseek in accordance with the provision of this Agreement.
14.6 Upon termination of this contract, advertising plans and ideas
prepared by the Agency, unless paid for by Infoseek in
accordance with the provisions hereof, shall remain the
Agency's property regardless of whether or not the physical
embodiment of the creative work is in the possession of
Infoseek in the form of copy, artwork, prints, or whatever.
14.7 Paragraphs 4 through 12, 14 through 21, and all other
provisions of this Agreement which may be reasonably
interpreted or construed as surviving the termination or
expiration of this Agreement, shall survive the termination or
expiration of this Agreement.
15. BILLING UPON TERMINATION
Upon termination of this of this contract, the Agency shall bill
Infoseek for, and Infoseek shall then pay, all amounts not previously
billed or paid and for which the Agency is entitled to claim
reimbursement for Infoseek under the terms of this Agreement. The
Agency is to receive no compensation or commissions with space, time,
materials, or services the payment for which shall become due to an
advertising medium or others after the termination of this contract
except to the extent that Infoseek shall have approved material
prepared by the Agency and shall have authorized the Agency to place
the same in named media for specific dates.
16. LIQUIDATED DAMAGES
Cancellation Prior to Execution of Duties. In the event that Infoseek
cancels this Agreement before the Agency receives compensation or
commission in connection with advertising space or time, but after the
Agency has begun to execute the duties outline in Paragraph 2 hereof.
Infoseek agrees to pay the Agency for services performed according to
Agency's published rate structure in effect at the time work is
performed.
17. LIMITATION OF LIABILITY
IN NO EVENT SHALL INFOSEEK BE LIABLE TO AGENCY FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE, EVEN IF
INFOSEEK SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. CONFIDENTIAL INFORMATION
Agency is under a duty not to disseminate or use for its own purposes,
both during and after the termination of this Agreement, any
"Confidential Information" imparted to Agency by Infoseek. Agency
shall restrict the dissemination of such information to employees on a
"need-to-know basis," unless otherwise agree to by Infoseek.
"Confidential Information" in regard to these contractual obligations
shall mean any information imparted to Agency by Infoseek in writing
and designated therein as "Confidential Information," or orally.
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19. WAIVER
Waiver by the Agency or Infoseek of any right in any instance is not a
waiver of, and is without prejudice to, its rights as to any other
instance.
20. NOTICE
Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing, will
reference this Agreement, and shall be deemed to have been delivered
and given (a) when delivered personally; (b) three (3) business days
after having been sent by registered or certified U.S. mail, return
receipt requested, postage and charges prepaid, whether or not
actually received; or (c) one (1) business day after deposit with a
commercial overnight carrier, with written verification of receipt.
All communications will be sent to the addresses first set forth above
or to such other address as may be designated by a party by giving
written notice to the other party pursuant to this Paragraph 20.
21. GOVERNING LAW AND JURISDICTION
This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of California. Each
party irrevocably consents to the exclusive jurisdiction of any state
or federal court for or within Santa Clara County, California over any
action or proceeding arising out of or related to this Agreement, and
waives any objection to venue or inconvenience of the forum in any
such court.
22. ENTIRE AGREEMENT
This Agreement supersedes any other agreements, either oral or in
writing, between the parties hereto and contains all the covenants and
agreements between he parties hereto. Any modification of this
Agreement will be effective only if it is in writing, signed by the
party or parties to be charged.
ACCEPTED AND AGREED
MARGEOTES|FERTITTA + PARTNERS INFOSEEK CORPORATION
("Agency") ("Company")
By:_________________________________ By:__________________________________
Authorized Signature Authorized Signature
Print Name:__________________________ Print Name:__________________________
Title:_______________________________ Title:_______________________________
Date:________________________________ Date:_________________________________
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